in the high court of karnataka dated this...
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IN THE HIGH COURT OF KARNATAKACIRCUIT BENCH, AT DHARWAD
DATED THIS THE 12TH DAY OF MARCH 2013
PRESENT
THE HON’BLE MR.JUSTICE DILIP B. BHOSALE
AND
THE HON’BLE MR.JUSTICE K.N. KESHAVANARAYANA
W.A. No. 30934/2012 (S-RES)
BETWEEN:
DAKSHIN BHARATH HINDIPRACHAR SABHA (KARNATAKA)REP. BY ITS SECRETARY,P.A. RADHAKRISHNAN,S/O. P.P. APPU, AGE. 57 YEARS,OCC. SECRETARY,D.C. COMPOUND, DHARWAD.
... APPELLANT
(BY SRI F.V. PATIL, ADVOCATE)
AND :
Dr. A.S. GADAGAGE. MAJOR,OCC. HOMEOPATHIC PHYSICIANR/O. MAHAVEER PLAZAGROUND FLOOR, SHOP NO.6 & 7,TIKARE ROAD, TQ. & DIST.DHARWAD.
... RESPONDENT
(BY SRI. R.M. KULKARNI, ADVOCATE)
R
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THIS W.A. IS FILED UNDER UNDER SECTION 4 OF THEKARNATAKA HIGH COURT ACT, R/W. ARTICLES 226 AND 227OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDETHE ORDER DATED 23.08.2012 PASSED BY LEARNEDSINGLE JUDGE IN W.P. NO. 64298/2012 BY ALLOWING THEAPPEAL.
THIS W.A. COMING ON FOR PRELIMINARY HEARINGTHIS DAY, DILIP B. BHOSALE J. DELIVERED THE
FOLLOWING:
PC :
This writ appeal is directed against the order dated
23.08.2012 passed by learned Single Judge in a writ petition
filed by the appellant, questioning maintainability of the
proceedings, before the Karnataka Educational Appellate
Tribunal, instituted by the respondent challenging his
termination as a Lecturer in the college run by them.
1.1. The contention that was urged on behalf of the
appellant – educational institution before the learned Single
Judge was that the appellant is an institution recognised by
the Indian Medical Council (I.M.C.) and amenable to the
provisions of the Indian Medical Council Act, 1956, (for short
“I.M.C. Act”), and therefore, is excluded from the purview of
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Karnataka Education Act, 1983 (for short “K.E. Act”). The
learned Judge disposed of the writ petition by recording the
following reasons –
“Since, admittedly, the proceedings are
pending before the Tribunal, the matter may be
allowed to run its course and notwithstanding the
finding of the Tribunal, that even though the
institution may be amenable to the provisions of the
Indian Medical Council Act, since the Act does not
provide for discipline and control of employees of the
institution, it is still open for an aggrieved employee
to invoke the provisions of the Karnataka Education
Act, 1983, as the petitioner institution is an
Educational Institution, is a question that shall be
left open for consideration by this Court if and when
the proceedings before the Tribunal attain finality
and are subjected to challenge before this Court
subsequently. With that observation, the petition
stands disposed of.”
2. Mr. F.V. Patil, learned counsel appearing for the
appellant assailed the order passed by the learned Single Judge
on two grounds. Firstly, after inviting our attention to Section
2(27) and Section 2(14) of K.E. Act, he submitted that it is only
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schools and junior colleges are covered by the K.E. Act, and
therefore, the appeal filed by respondent under Section 94 of
the K.E. Act before the Karnataka Educational Appellate
Tribunal is not maintainable. In other words, he submitted,
the K.E. Act would not apply to the educational institutions
which run colleges imparting professional education such as
medical education, technical education etc. Secondly, he
submitted that under clause (iv) of sub-section (3) of Section 1
the colleges and institutions which are dealt within the I.M.C.
Act are excluded from the purview of K.E. Act. He submitted
that admittedly the appellant - college is recognised by Indian
Medical Council and is affiliated to Rajiv Gandhi University of
Health Sciences Act, 1994 (for short “the University”), and
hence the proceedings under the provisions of the K.E. Act
against them are not maintainable.
3. The appellant is a Society registered under the
Karnataka Societies Registration Act, 1960. They have a
medical college and hospital in homeopathy at Dharwad, established
in 1996-97. The college is recognised by the Central Council of
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Homeopathy. It is also recognised under the I.M.C. Act. The
respondent was working as a Professor in the college run by
the appellant - institution. His services were terminated with
effect from 28.04.2011. The respondent questioned his
termination by filing an appeal under Section 94 of the K.E. Act
before the Karnataka Educational Appellate Tribunal,
constituted under Section 96 of the said Act. Before the
Tribunal, the appellant raised a preliminary objection as to its
jurisdiction to hear and decide an appeal under Section 94 of
the K.E. Act against the institution recognised and / or dealt
within the I.M.C. Act. The Tribunal after considering the
relevant provisions of K.E. Act and I.M.C. Act and so also the
judgment of this Court in B.N. VADIRAJA vs. MUMTAZ
AHMED, ILR 2000 KAR 3425 held that the appeal filed by the
respondent under Section 94 of the K.E. Act challenging his
termination is maintainable. Against the order of Tribunal the
appellant – institution filed the writ petition, which came to be
disposed of with the observations quoted in paragraph No. 1.1
of this judgment.
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4. At the outset, we would like to deal with the first
submission advanced by Mr. Patil, learned counsel for the
appellant that the provisions of K.E. Act would not apply to the
medical college run by the appellant – institution. In support
of this contention, our attention was invited to clause (b) of
Section 2(27) and Section 2(14) of the K.E. Act, which read
thus-
2(27). “Private Educational Institution”
means any educational institution imparting
education referred to in Section 3, established and
administered or maintained by any person or body
of persons, but does not include an educational
institution –
(a) ………………..
(b) established and administered by any
University established by law;
(c) ………………..
(d) ………………..
2(14) “Educational Institution” means any
institution imparting education referred to in Section
3 and includes a private educational institution but
does not include an institution under the direct
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management of the University or of the Central
Government or a tutorial institution;
5. The definition of “private educational institution”
means any educational institution imparting education referred
to in Section 3, “established” and “administered” or
“maintained” by any person or body of persons, but shall not
include an educational institution – “established” and
“administered” by any University established by law. The
dictionary meaning of the word “administer” is “to attend to the
running of affairs” or to “manage”, and of the word “establish”
is “to set-up on a system on permanent basis” (see DK
illustrated Oxford Dictionary; reprinted 2008).
5.1. In Shiromani Gurdwara Prabandhak Committee,
Amritsar v. Mihan Singh (Dead) Rep. by Baba Banta Singh,
(1993) 3 Supreme Court Cases 650, the Supreme Court while
considering the meaning of the word “establish” in paragraph
10 observed thus -
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10. …………………………… The meaning of the
word ‘establish’ as given in the New Collins Concise
Dictionary, 1983 edn., is : “1. to make secure or
permanent in a certain place, condition, job etc. 2. to
create or et up (an organisation etc.) as on a
permanent basis.” According to Webster’s
Comprehensive Dictionary (International edn.), the
word ‘establish’ means: “1. to settle or fix firmly;
make stable or permanent. 2. to set up; found, as an
institution or business. 3. to set up, install (oneself or
someone else) in business, a position, etc.”
5.2. The Supreme Court further observed that the words
“establish and administer” must be read conjunctively, and so
read, it gives the right to the educational institution to
administer the College established and run by them. Having
regard to the observations made by the Supreme Court, it
appears to us that the word “establish” means to bring into
existence and administer it. If the College is established by the
educational institution it cannot, either be administered or
managed by any other authority, such as the University or for
that matter, the Indian Medical Council. In other words,
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unless a College or an institution is established by the
University or the Indian Medical Council, the question of
“administering” or “managing” the affairs of such College or
such institution by them would not arise.
6. Mr. Patil vehemently contended that the appellant’s
college is covered by clause (b) of Section 2(27) which excludes
application of the K.E. Act to the colleges like the one run by
the appellant - institution and affiliated to the University. In
short, it was submitted that the appellant -educational
institution, since is “affiliated and recognised” by the University
and the I.M.C., the provisions of K.E. Act would not apply.
Similar contention was raised after inviting our attention to the
definition of “Educational institution” as defined by sub-section
(14) of Section 2 of the K.E. Act. The definition of expression
“educational institution”, would show that it means any
institution imparting education referred to in Section 3 and
includes a private educational institution but does not include
an institution under the direct management of the University
or of the Central Government or a tutorial institution. Mr. Patil
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on the basis of this provision submitted that in view of the
expression “direct management of the University”, the appellant
- educational institution is not covered by K.E. Act.
7. We are unable to agree with the contentions urged on
behalf of the appellant for more than one reasons. Clause (b) of
sub-section (27) of Section 2 of K.E. Act clearly states that
private educational institution does not include an educational
institution “established and administered by any University
established by law”. The appellant - educational institution is
neither established nor administered by the University. It is
only affiliated to the University. Similarly it is not under direct
management of the university. The appellant, therefore, is a
private educational institution imparting education referred to
in Section 3, not established and administered by any
University or I.M.C. As a matter of fact it is not in dispute that
the University does not have any control over the management
of the appellant – institution nor is it established or
administered or maintained by the University and that it is
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only affiliated to the University. In the circumstances, the first
submission must be rejected.
8. Further, we would like to consider the submission of
Mr. Patil that the K.E. Act covers only schools or at the most
junior colleges and not the colleges which impart professional
education such as medical education, technical education,
commerce education etc. The provisions contained in Section
2(27) and Section 2(14) make reference to imparting of
education referred to in Section 3. This Section states that the
State Government may, subject to sub-section (3) of Section 1,
regulate general education, professional education, medical
education, technical education, commerce education and
special education at all levels in accordance with the provisions
of this Act. In view of the provisions contained in sub - section
(1) of Section 3 of the Act, by no stretch of imagination it could
be said that the Act would not apply to the educational
institutions, like the petitioner – institution. There are several
other provisions including sections 1(3), 2(16), 2(20) in the K.E.
Act, which indicate that it would cover / apply to all
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educational institutions, such as the petitioner - institution.
Hence, this ground of challenge also must be rejected.
9. That takes us to consider the next submission based
on sub-section (3) of Section 1 of the K.E. Act. It would be
relevant to reproduce the said provision for better appreciation
of the submission advanced on behalf of the appellant-
“Section 1(3) - It applies to all educationalinstitutions and tutorial institutions in theState except-
(i) institutions for scientific or technicaleducation financed by the CentralGovernment, and declared byParliament by law to be institutions ofnational importance;
(ii) institutions of higher education whichshall be deemed to be University asdeclared by the Central Government bya notification, under section 3 of theUniversity Grants Commission Act, 1956(Central Act III of 1956);
(iii) institutions established or maintainedand administered by or affiliated to orrecognised by the University ofAgricultural Sciences insofar as thematter pertaining to them are dealtwithin the University of AgriculturalSciences Act, 1963 (Karnataka Act 22 of1963);
[(iiia) Educational Institutions affiliated to orrecognised by the Council of Indian School
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Certificate Examination or Central Board ofSecondary Education respectively;]
(iv) in so far as the matters pertainingto colleges and institutions aredealt within,-
(a) the Indian Medical Council Act, 1956(Central Act, CII of 1956);
(b) the Dentists Act, 1948 (Central Act XVI of1948);
(c) the Pharmacy Act, 1948 (Central Act VIIIof 1948);
(d) the Karnataka State Universities Act,1976 (Karnataka Act 28 of 1976);
[(d-a) the All India Council for Technical
Education Act, 1987 (Central Act 52
of 1987);
(d-b) the Indira Gandhi National Open
University Act, 1985 (Central Act 50
of 1985);
(d-c) the National Council for Teacher
Education Act, 1993 (Central Act 73
of 1993);]
(e) the Karnataka Ayurvedic and UnaniPractitioners' Registration and MedicalPractitioners’ Miscellaneous ProvisionsAct, 1961 (Karnataka Act 9 of 1962) ; and
(f) the Karnataka Homoeopathic PractitionersAct, 1961 (Karnataka Act 35 of 1961);
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(v) such other class or classes of institutions,
subject to such conditions and to such extent as theState Government may, by notification, specify:
Provided that nothing in Chapter III, section 35
of Chapter V, Chapter VII and Chapters IX to XV
(both inclusive) except sections 57 and 58 of Chapter
X shall be applicable to commerce institutions.
10. Sub-section (3) of Section 1 of K.E. Act, states that
‘it’ applies to all educational institutions and tutorial
institutions in the State except the institutions mentioned in
clauses (i) to (v). Insofar as clause (iv) is concerned, that
excludes, from application of the K.E. Act, the colleges and
institutions which are “dealt within” the provisions of the Acts
mentioned therein. Having regard to this provision, insofar as
the appellant is concerned, the K.E. Act would not apply to it in
respect of the matters “dealt within” the Indian Medical Council
Act, 1956 (Central Act C11 of 1956). In other words, the K.E.
Act would not apply to the colleges and institutions insofar as
matters “dealt within” the Acts referred to in clause (iv) (a) to (f)
of Section 1(3). That would, in our opinion, also mean that the
matters which are “not dealt within” the Acts referred to in
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clause (iv) (a) – (f) of Section 1(3) are covered by the K.E. Act.
We have carefully seen the provisions contained in the Indian
Medical Council Act. It does not provide for discipline and
control of employees of the institutions. It provides for
reconstitution of Medical Council of India, the maintenance of a
medical register for India and for matters connected therewith.
We did not find a single provision in this Act which provides for
discipline and control of the employees of any institution or
dealing with service conditions of the employees in such
institution which is approved / recognised by the Indian
Medical Council. The I.M.C. Act provides for constitution and
composition of Council, mode of its election, election of the
President, office of President and members of the Council, its
functioning, recognition of the medical qualifications,
permission to establish medical colleges, new course studies,
recognition of medical qualifications granted by medical
institutions in countries etc. In other words, the I.M.C. Act
does not contain a single provision, which directly or indirectly
deals with the service conditions of employees or provide
remedies, if a disciplinary action is taken against them by the
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institutions / private educational institutions, recognised
under the same Act. Since there is no specific provision under
the I.M.C. Act providing a remedy for an employee of the
private educational institutions such as the appellant against
whom the action of termination is taken by the Management, in
our opinion, the provisions of K.E. Act are applicable. The
Tribunal has rightly observed in the order to hold that it has a
jurisdiction to entertain the appeal filed by the appellant
challenging his termination.
11. At this stage we would like to make reference to the
judgments of this Court relied upon by learned counsel for the
parties. Mr. Patil, learned counsel appearing for the appellant
placed heavy reliance upon the judgment of learned Single
Judge in A.M. Shivalinge Gowda v. Shri Adhichunchanagiri
Shikshana Trust (R), Shri Adhichunchanagiri Kshetra,
Nagamangala Taluk, Mandya District and Another,
2010(2) Kar. L.J. 374. In this case, he submitted, a similar
issue was raised. We have carefully perused the judgment. It
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appears that a disciplinary action was initiated against the
petitioner and on examination of records and after affording an
opportunity of hearing he was terminated from service. The
order of termination was challenged by the petitioner by way of
an appeal before the Educational Appellate Tribunal
constituted under the provisions of K.E. Act. The Tribunal,
dismissed the appeal as not maintainable. That order was
challenged in writ petition. In the petition, on behalf of the
employer it was contended that respondent – hospital run by
them is not an educational institution and hence the Tribunal
had no jurisdiction to entertain and adjudicate the appeal filed
by the petitioner, who was appointed as Pharmacist in the
second respondent – hospital. It was also contended that the
second respondent is recognised by Medical Council of India
and that being so, the respondent institution stood excluded
from the Karnataka Education Act. There the learned Judge in
paragraph 9 while dealing with the question whether the writ
petition was maintainable against the respondent, relied upon
the other judgments of this Court in Vidyavardhaka Sangha,
Bijapur and Another v. S.K. Joshi and Others, 2005(5)
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Kar.L.J. 402 and in Tejaswini Patil v. Bangalore University
and Others, 1991(1) Kar. L.J. 556, held that the writ was
maintainable against an institution such as the respondent
and then the learned Judge observed that having due regard to
the law laid down by this Court as well as in case of
Vidyavardhaka Sangha, and the case law cited therein, the
fact remains that the respondent – institution in which the
petitioner was working was a hospital and he was working as a
Pharmacist and hence the question of Education Act applying
insofar as above decision cited by the petitioner is concerned, is
not acceptable. In paragraph 12 and 13 it is held thus-
“12. The argument of the Counsel for the
petitioner is that the petitioner was a Diploma holder
from a Medical College, which was recognised by the
Medical Council of India and the very establishment
of the hospital as a part of the college was for the
purpose of imparting medical knowledge and
therefore to construe the hospital as distinguished
from Medical College would be a travesty of justice,
since it is clearly part and parcel of the Medical
College. It is contended that therefore the Education
Act was clearly applicable.
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13. This argument which is submitted in an
unusually raised tone by the Counsel does not
appeal to this Court and the case law and the
judgment cited would be applicable in respect of an
educational institution and it cannot be said that the
same would apply to the respondent herein. Hence,
the order dated 10.09.2009 is recalled.
12. Learned counsel for the respondents relied upon the
judgment of this Court in B.N. Vadiraja v. Mumtaz Ahmed,
2000 – ILR (Kar) – 0 – 3425. In that case the petitioner, who
was appointed as a Senior Tutor in the Department of
Pharmacology, A1 Ameen Medical College, Bijapur was
terminated and the order of termination was challenged before
the Educational Appellate Tribunal constituted under the
provisions of the K.E. Act. It was contended on behalf of the
educational institution that the A1 Ameen Medical College,
Bijapur is affiliated to Karnataka University, Dharwad and the
one under the provisions of Karnataka State Universities Act,
1976, the Appellate Authority has no jurisdiction to entertain
the appeal in view of Section 1(3) (iv) (d) of the K.E. Act. The
Appellate Tribunal dismissed the appeal holding that the
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appeal was not maintainable, as the College is affiliated to
Karnataka University governed under the provisions of
Karnataka State Universities Act, 1976, as such the provisions of
K.E. Act are not applicable. This Court in a writ petition filed
by the petitioner – employee challenging the order of Appellate
Tribunal, held that the provisions of the K.E. Act are applicable
in respect of the employees of Private Medical College affiliated
to Rajiv Gandhi University. It was further observed that since,
there is no specific provision either under the I.M.C. Act or
under the Karnataka State Universities Act, 1976 providing a
remedy for an employee, against whom disciplinary action is
taken by the Management, the provisions of K.E. Act are
applicable to the employees of A1 Ameen Private Medical
College being a private educational institution defined by
Section 2(d) of the K.E. Act.
12. Having regard to the judgments of this Court and
the provisions of K.E. Act and I.M.C. Act, we have no hesitation
in holding that the appellant – educational institution is
amenable to the provisions of K.E. Act and that the appeal filed
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by the respondent before the Karnataka Educational Appellate
Tribunal is maintainable.
13. In the result, the appeal is dismissed. No costs.
Sd/
JUDGE
Sd/
JUDGE
hnm/-